Rajesh Kumar @ Raju vs State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 1310 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl. Appeal No. 835/2005

%                       Date of Decision : 13th of April, 2009


#        RAJESH KUMAR @ RAJU                       ..... Appellant

!                       Through: Mr. Sumit Verma, Adv.

                        versus
$        STATE (GOVT. OF NCT OF DELHI)            ..... Respondent

^                       Through: Ms. Richa Kapoor, APP


*        CORAM:
         HON'BLE MR. JUSTICE B.N.CHATURVEDI
         HON'BLE MR. JUSTICE P.K. BHASIN
         1.   Whether the Reporters of local papers
              may be allowed to see the judgment?                Yes

         2.   To be referred to the Reporter or not?             Yes

         3.   Whether the judgment should be                     Yes
              reported in the Digest?

: B.N.CHATURVEDI, J.

1. Charged and tried for an offence punishable under

Section 302 IPC, the appellant is in appeal against his

conviction vide judgment dated 1.7.2005 and sentencing to

life imprisonment and fine of Rs.2,000/-, in default of

payment of fine RI for ten months by an order dated 2.7.2005.

2. Material facts leading to appellant's prosecution, as

stated in the chargesheet, disclose that on 19th of November,

2000, at about 4.10 a.m. an information was received on

phone from one Subhash Chand, S/o Fateh Chand, at Police

Station Nabi Karim, Delhi, that a lady smeared in blood was

lying in an injured condition in front of his house. The

information so received was recorded being DDNo.6-A dated

19.11.2000 at PS Nabi Karim, Delhi. A copy of such DD

report was passed on to SI Jai Raj Singh for necessary action.

SI Jai Raj Singh, accompanied by Constable Satish Kumar

1453/C, proceeded to the spot where he came to know that

the injured had been removed to Lady Harding Hospital. He,

accordingly, accompanied by the said constable proceeded to

the Lady Harding Hospital. On reaching there, he learnt that

the injured lady had been declared by the doctor concerned

as brought dead. SI Jai Raj Singh came across with one

Madhu Sharma at the hospital. He recorded her statement

and sent the same to the police station with his endorsement

thereon through Constable Satish Kumar for registration of a

case under Section 302 IPC. An FIR was, accordingly,

registered at 6.10 a.m. SI Jai Raj Singh collected MLC of the

deceased lady and went back to the spot. He took into his

possession a bloodstained knife lying at the spot, got the

scene of the crime photographed by crime team and

completed other proceedings. As Madhu Sharma,

complainant, had named the appellant as the one who caused

fatal injuries on the person of the deceased, the police

searched for him and eventually succeeded in effecting his

arrest on 1st of June, 2001. Pursuant to a disclosure made by

the appellant, his bloodstained shirt was recovered from the

Jhuggi of one Ravi Rai on 3rd of June, 2001, which was taken

into possession by the police. The knife recovered from the

scene of crime as also the clothes of the deceased, which she

was wearing at the time of incident and bore cut marks were

later referred to Lady Harding Hospital for opinion if the cut

marks on the KAMEEJ of the deceased could have been

possible by the knife in question. The doctor, who examined

the cut marks on the KAMEEJ and the knife, gave his opinion

in affirmative, as mentioned in the report dated 16.8.2001.

3. In the course of investigation, statements of

witnesses, including PW-3, Sonu, son of the deceased, who

was living with her and had witnessed the appellant causing

stab injuries on the person of his deceased mother, were

recorded. On investigation being complete and chargesheet

being filed, the appellant was tried, which culminated into his

conviction and sentencing as aforesaid.

4. The impugned conviction of the appellant, as

recorded by the learned Additional Sessions Judge, is

primarily based on the testimony of Sonu, PW-3, who

happens to be the solitary eye-witness to the incident.

5. Shri Sumit Verma, Advocate, appearing for the

appellant, assailed the impugned conviction and sentence on

the ground that the very presence at the spot of Sonu, PW-3,

the sole witness, being doubtful his testimony could not have

been accepted by the learned trial court without corroboration

to find the appellant guilty of murder of Smt.Rani. He

contended that the bloodstained knife which was recovered

from the spot was not sent to CFSL to determine the blood

group and the origin of the blood thereon to connect the same

with the murder of Smt.Rani. Shri Verma lastly contended

that the knife seized by the police from the spot was not

shown to the doctor concerned conducting post-mortem

examination on the dead body of Smt.Rani in the course of

his examination before the court, rather the opinion of

another doctor regarding cut marks on deceased's KAMEEJ is

being relied upon by the prosecution to prove that the knife in

question was used as weapon of offence. It was, accordingly,

contended that the evidence on record was not credible and

sufficient to find the charge under Section 302 IPC against

the appellant proved beyond reasonable doubt.

6. Ms.Richa Kapur, Addl.P.P., on the other hand,

pleaded that the statement of Sonu, PW-3, coupled with

medical opinion and testimony of other witnesses on record

clearly established beyond doubt that Smt.Rani was done to

death by appellant only by inflicting multiple stab injures on

her person. She submitted that apart from Sonu, PW-3,

stating that on the relevant date and time, he was there in the

room with his mother, where stabbing took place, the

statements of Madhu Sharma, PW-1, Jai Parkash @ Papan,

PW-2, Deepak, PW-4, and Uttam Sharma, PW-6, establish

beyond doubt that the incident of stabbing by appellant was

witnessed by PW-3 and that there is no basis to entertain any

doubt in regard to his actual presence at the scene of crime at

the relevant time, as argued on behalf of the appellant. It was

contended by Ms. Kapur, that in view of eye-witness account

of the incident as affirmed by Sonu, PW-3, the omissions on

the part of the prosecution, as pointed out by learned counsel

for the appellant, could not justify a doubt being entertained

on appellant's involvement in the commission of the crime. It

was, accordingly, contended that no interference with the

impugned conviction and sentence is called for.

7. We have heard the arguments on either side and

examined the evidence on record.

8. The scene of crime is a room where Smt.Rani, the

deceased, was staying for the last about three months prior to

the incident along with her son, Sonu, PW-3, and the

appellant. This fact is established from the statement of

Madhu Sharma, PW-1. Smt.Rani, deceased, was married to

one Jai Parkash @ Papan, PW-2, and had two sons, including

Sonu, PW-3, from this marriage. In July, 2000, the deceased

left her matrimonial home and started living separately with

the appellant and Sonu, PW-3. Deepak, PW-4, the other

sonwas left behind with his father Jai Parkash @ Papan, PW-

2. For some time even Deepak had remained with the

deceased when she accompanied the appellant to his native

place in Madhya Pradesh where they stayed for about

two/three months before returning to Delhi. There is evidence

in the nature of statements of Smt.Madhu Sharma, PW-1, Jai

Parkash @ Papan, PW-2, Sonu, PW-3 and PW-4, and Deepak,

PW-4, to supply basis for a finding that the appellant was

staying with the deceased ever since she left her matrimonial

home and lastly lived together in the room in question.

9. According to Smt.Madhu Sharma, PW-1, the

appellant had to share the rent of the room with the deceased

which he was not paying in spite of being demanded by the

deceased. She stated that on Smt. Rani, deceased,

complaining to her in this respect and on her intervening, the

appellant had promised to pay his share of rent to the

deceased next morning. Sonu, PW-3, testified that on the

date of incident his mother Smt.Rani had demanded money

from the appellant but he refused to pay. He further affirmed

that the appellant smashed the electric bulb in the room with

his hand and thereafter stabbed his mother, Smt.Rani and

fled. Sonu rushed to the house of Madhu Sharma, PW-1, in

the neighbourhood at some distance and informed her about

the incident. When he returned to the place of incident along

with Madhu Sharma, PW-1, he saw his mother standing at

the door of the house. He further deposed that his mother

was removed to the hospital by Madhu Sharma, PW-1, where

she had died. The fact that Sonu, PW-3, had approached

Madhu Sharma, PW-1, at her house on the night of 18/19

November, 2000 at about 4.00 a.m. and told her that his

mother Smt.Rani had been stabbed by the appellant is

corroborated by Madhu Sharma, PW-1, as also by her

husband, Uttam Shrama, PW-6. Before the incident of

stabbing actually took place, Sonu, PW-3, was asleep in the

room but he woke up on hearing noise when he witnessed the

incident as narrated by him. From the statement, in the

cross-examination, of SI Jai Raj Singh, PW-8, who visited the

room of the deceased on receiving the copy of DD No.6-A

dated 19.11.2000, it is gathered that he did not come across

with Sonu there. He also did not find Sonu being present at

the hospital either. It was only sometime in the afternoon

that he found Sonu, PW-3, present with others at the room in

question. This part of statement of SI Jai Raj Singh, PW-8,

was made as a basis by learned counsel for the appellant to

contend that had Sonu, PW-3, been staying with his deceased

mother, he would have either been present at the spot when

SI Jai Raj Singh, PW-8, visited that place for the first time or

at the hospital. In this connection it may be noticed that on

the date of incident, Sonu, PW-3, appeared to be a child of

tender age of about five years. After having witnessed the

violent act being unleashed by the appellant on his mother, it

was but natural that he would have got quite scared and thus

could not be expected to be left alone there at the spot by the

neighbours. Though Sonu, PW-3, stated that he had also

accompanied his injured mother to the hospital, but from the

statement of Madhu Sharma, PW-1, as also of SI Jai Raj

Singh, PW-8, this part of his statement does not appear to be

correct. SI Jai Raj Singh, PW-8, in the course of his

statement, told that Sonu, PW-3, was left in the company of

son of Madhu Sharma, PW-1. The plea in support of his

argument raising doubt about the presence of Sonu, PW-3, at

the time of occurrence by the learned counsel for the

appellant is, in the circumstances, difficult to accept.

10. The fact that a bloodstained knife, Ex.P-1, was found

lying at the scene of occurrence and taken into possession by

the police vide memo Ex.PW-1/C after preparing a sketch

thereof vide Ex.PW-1/B, was not questioned by learned

counsel for the appellant in the course of his arguments. This

knife along with clothes, including a KAMEEJ of the deceased

bearing cut marks, was referred to Lady Harding Hospital

with a view to seek opinion of the doctor concerned if the cut

marks on the KAMEEJ could possibly be caused with that

knife. A report containing opinion of a doctor vide Ex.PW-

17/B, was received stating that the stab injuries No.7,9,10,11

and 12 and incised wounds No.5, 8 and 13 on the body of

the deceased could be possible with the knife Ex.P-1 and cuts

present on the KURTA/KAMEEJ of the deceased were

corresponding to the injuries present on the body of the

deceased. No doubt the knife Ex.P-1 was not shown to

Dr.Vinay Kumar Singh, PW-14, who conducted post-mortem

examination on the dead body of Smt.Rani, in the course of

his examination before the court or at the time of autopsy to

elicit his opinion if the stab injuries/incised wounds could

have possibly been caused by a knife like Ex.P-1, medical

opinion of another doctor being available in this respect, the

prosecution cannot be precluded from referring to that

opinion to prove that the knife, Ex.P-1, was the one used by

the appellant as weapon of offence. The omission on the part

of investigating officer to send the knife Ex.P-1 to CFSL to find

the group of the blood thereon and the origin of such blood

cannot be taken to affect the prosecution case materially as

the recovery of knife, Ex.P-1 and presence of blood of the

deceased thereon could have been used as a corroborative

piece of evidence only. In the facts and circumstances of the

case, it being a case where there is credible statement of an

eye-witness, namely, Sonu, PW-3, that by itself is sufficient to

find the appellant guilty of murder of Smt.Rani. From the

statement of Dr.Upender Kishore, PW-17, who gave his

opinion vide Ex.PW-17/A in respect of knife, Ex.P-1, and

KURTA/KAMEEJ, Ex.P-5, as noticed earlier, it is gathered

that Dr.Vinay Kumar Singh, PW-14, who had conducted post-

mortem examination on the dead body of Smt.Rani had, after

his statement before the court, left the department concerned

in Lady Harding Hospital and, therefore, the opinion, Ex.PW-

17/A, as sought by the investigating officer, had to be

rendered by him. In any case, irrespective of the fact whether

or not knife, Ex.P1, was the one used for causing stab

injuries/incised wounds on the person of Smt.Rani, which

accounted for her death, in view of categorical statement of

Sonu, PW-3, that his deceased mother was stabbed by the

appellant in his presence, not much benefit can accrue to the

appellant on this count.

11. On his arrest, according to prosecution, the

appellant got his bloodstained shirt recovered at his instance

from the Jhuggi of Ravi Rai, PW-15 which was taken into

possession by the police vide Ex.PW-8/K. However, like knife,

Ex.P-1, this bloodstained shirt was also not sent to CFSL to

find if the same bore stains of blood which matched the blood

group of the deceased and, therefore, one cannot be sure if

the bloodstains on that shirt were that of the deceased.

Recovery of such a shirt is, in the circumstances of no avail to

the prosecution.

12. On a critical analysis of the evidence on record, the

appellant is found to be the one who is proved beyond doubt

to have committed the murder of Smt.Rani. Hence, his

conviction under Section 302 IPC and sentencing therefor as

recorded by the learned trial court, is held as fully justified

warranting no interference therewith. The appeal, thus, fails

and is dismissed accordingly.

(B.N.CHATURVEDI) JUDGE

(P.K. BHASIN) JUDGE April 13, 2009 RS/